The US Supreme Court

[L'Emmerdeur]

The court gets plenty of grief from me in this thread, but on rare occasions they do something that I generally agree with. In Allen v. Milligan they upheld a section of the Voting Rights Act after previously shredding others.

Still, good ol' Justice Thomas in his dissent served up some good stuff, approvingly citing as 'color-blind' Plessy v. Ferguson, which created the discredited and shameful 'separate but equal' doctrine. Thomas's dissent begins on page 46 of the PDF.

Full decision: Allen v. Milligan

'Surprise! The Supreme Court just handed down a significant victory for voting rights'

The Supreme Court did something genuinely shocking on Thursday. It handed down a 5-4 decision in Allen v. Milligan that preserves longstanding safeguards against racism in US elections, strikes down a gerrymandered congressional map in Alabama, and all but assures that Democrats will gain at least one congressional seat in the next election from that state.

Indeed, Chief Justice John Roberts’s opinion for the Supreme Court repeatedly chastises Alabama’s lawyers for their aggressive efforts to rewrite longstanding law in order to render much of what remains of the Voting Rights Act an empty husk. As Roberts writes in a particularly pointed swipe at those lawyers, “the heart of these cases is not about the law as it exists. It is about Alabama’s attempt to remake our [Voting Rights Act] jurisprudence anew.”

Roberts’s opinion was joined in full by all three of the liberal justices, and was joined almost entirely in full by Justice Brett Kavanaugh,

Of course, the idea that a court should follow precedent isn’t supposed to be controversial. It’s supposed to be highly unusual for a court to turn its back on one of its own precedents.

But this is the Roberts Court we are talking about here, a Court that, especially after former President Donald Trump remade its membership, has been extraordinarily willing to toss out seminal precedents — and to dismantle the Voting Rights Act.

* * *

...Thomas said he would have ruled that the Voting Rights Act had no power at all to prevent state legislators from racially gerrymandering districts — grouping minority votes along racial lines to dilute their power.

Thomas said he's "long been convinced" that the Voting Rights Act only regulates voters' ability to actually get to the ballot or cast it.

[source]

[L'Emmerdeur]

Well, c'mon man. Accepting luxury vacations from billionaires is perfectly normal. Just ask Justice Thomas.

'Justice Alito refutes ProPublica report he should have disclosed luxury trip'

Justice Samuel Alito did not disclose a luxury trip he took in 2008 with hedge fund billionaire Paul Singer nor did he recuse himself from cases that the businessman later had in front of the Supreme Court, a new report from ProPublica alleges.

ProPublica says that after this trip, Singer's hedge fund brought at least 10 cases to the high court. This included a case from 2014 involving a dispute between Singer's hedge fund and the country of Argentina. Alito voted with the 7-1 majority, along with the court's liberals, in favor of Singer — netting his hedge fund, Elliott Management, $2.4 billion, the publication found.

Alito didn't respond to ProPublica's questions directly. Instead he took an unusual step to publish a preemptive op-ed in The Wall Street Journal, refuting the allegations and defending himself saying, "I had no obligation to recuse in any of the cases that ProPublica cites."

[L'Emmerdeur]

Right back to unconscionably crapping on justice. This was a five to four ruling, Gorsuch siding with the non-'conservatives.' At this point I question whether he would have done the same if it would have made a difference, though his dissent (begins on page 22 of the PDF of the ruling) appears straight-forward. I just don't trust these fuckers.

'Navajo Nation Just Got Hosed by the Supreme Court—Again'

When I first learned about the Trail of Tears in junior high school, after getting over my outrage and disgust, my first thought was, “Thank God we don’t do that anymore.”

I was wrong. Just today, the U.S. Supreme Court proved that we are still doing it.

Navajo Nation v. Arizona is this term’s most important Supreme Court ruling that you haven’t heard of. But the Navajo have. And they know that the high court has just stripped them of rights that they thought that they have had for more than a century.

The Navajo (who refer to themselves as the Diné) have lived in the Colorado River Basin—in what is now Arizona, New Mexico, and Colorado—for hundreds of years.

Even though the United States and the Navajo signed a treaty in 1849, 14 years later federal troops drove the Navajos from their ancestral homeland and marched them “some 300 miles” to live captive at Bosque Redondo, “a small piece of land on the Pecos River in eastern New Mexico.” This became known as the Long Walk, and it was a disaster: Bosque Redondo lacked sufficient water or arable land and was unsuitable for livestock. Many Navajo died.

Finally, in 1868, U.S. Army Commander William Tecumseh Sherman agreed to take them back to a small portion of their original homeland—an area later made even smaller in the new 1868 treaty. “No worries,” promised the white man: the federal government guaranteed that the Navajo would have access to resources that they would need to maintain an agricultural way of life.

The federal government made more promises. In 1908, the Supreme Court, in Winters v. United States, held that rights to land necessarily included water rights connected to that land. That means that the Navajo should also have had the necessary water rights to make life on that reservation barely manageable.

As with most promises the white man made to the Indians, it was broken. Half a century after Winters—whose rights are supposed to be senior to all other rights claimed—the Supreme Court adjudicated most of the Colorado River, and split it between seven states along the river and five Indian tribes. But the decree did not include the Navajo. The tribe attempted to intervene in the litigation and was blocked by the federal government, which claimed that it would see to it that their rights were taken care of. Yet Washington broke its promise, and to this day, the Navajo have no adjudicated rights on the Colorado River, which runs next to their land.

[Detailing the difficulties faced by the Navajos--'the average American uses 80-100 gallons of water per day for household needs, Navajo Nation members use about seven.']

The Navajo have waited literally for decades for the federal government to fulfill its promises, and the answer from Washington has been a stone wall.

So in 2014, they sued the federal government to finally fulfill its promises. Notably, the tribe did not demand an adjudication of its right in the Colorado. It merely asked that the federal government assess tribal water needs and come up with a plan to meet them.

The Supreme Court has long held that the federal government has a “trust obligation” to tribes. The Navajo Nation claims that the federal government has the trust obligation to give it access to adequate water. Washington breached its trust obligations and needed after decades to make the tribe whole. The Ninth Circuit agreed.

But states like Arizona and Colorado, which do not want the Navajo intruding on their rights on the river, petitioned the Supreme Court for relief. They claim that when the Supreme Court adjudicated the Colorado River back in 1963, it reserved for itself the right to divide the river. The tribes couldn’t sue the federal government, because then the federal government might decide that the river needed to be changed.

...

[The majority ruling's] argument is: even though the treaty guarantees you the right to farm your land, and the federal government is your trustee, you can’t force the federal government to actually act on its obligations, and you can’t sue on your own to get water that runs across your land. To this, the Court lamely says that “Congress and the President may update the law to meet modern policy priorities and needs.”

[Tero]

Confusing laws that send people to prison with no crime

Section 2255 contains several exceptions which allow some federal prisoners to bring a second challenge — one of which provides that Jones may bring a second challenge if § 2255’s usual process “is inadequate or ineffective to test the legality of his detention.”

But Thomas construes this “inadequate or ineffective” language very narrowly — so narrowly, in fact, that Justice Ketanji Brown Jackson mocks Thomas in her dissenting opinion for ruling that someone like Jones may only seek relief “if the courthouse where a § 2255 motion would have otherwise been filed has burned to the ground or been carried away by a mudslide.”

Under Thomas’s majority opinion, it will not just be people like Jones — people convicted under the felon-in-possession gun statute, to whom Rehaif offered new hope — who will be denied second chances at overturning their convictions. Many other people who committed no crime whatsoever will also be denied these rare-but-occasionally-legal second appeals, and will languish in prison.

As Jackson writes, the real purpose of the “inadequate or ineffective” provision was not simply to permit habeas cases to proceed if a faraway court is inaccessible or shut down. It was also “to ensure that certain pre-existing postconviction claims (say, a claim of statutory innocence) could still be heard even if the statutory language Congress was adopting inadvertently barred them.”

https://www.vox.com/scotus/2023/6/22/23 ... mas-habeas

[L'Emmerdeur]

Yeah, that one is complete shit. A 6 to 3 ruling, of course.

As a result of this opinion, people with illegal convictions and sentences—people who are legally innocent—will be stuck in prison for no good reason because the courts screwed up, not because they did. The law certainly did not require this result.

[source]

[L'Emmerdeur]

I freely admit that fairly regularly I get too far down various rabbit holes chasing the intricacies of the rulings of the US Supreme Court. Those who don't care to explore yet another rabbit hole may want to skip this post.

The current dominance of the so-called 'originalist' approach to Supreme Court adjudication is problematic for a number of reasons. Primarily, the fact that none of the justices is a historian means that 'originalism' is essentially an amateurish endeavor at best. The justices can consult with historians, but apparently more often rely on their clerks. Supreme Court law clerks of course are almost certainly not trained historians by and large, but lawyers. Then there is the fact that historians themselves are not necessarily reliable. History is twisted for ideological reasons rather frequently.

The case of Haaland v. Brackeen, in which the Indian Child Welfare Act was challenged, is discussed by Gregory Ablavsky, a historian with a deep knowledge of the issues bearing on the case. He notes that Justice Thomas (dissenting) relied on Robert Natelson, a constitutional law scholar who takes a less than impeccable approach to history ...

[Natelson’s critiques of the Ablavsky's work sort into three broad categories. Ablavsky will explain] these categories as well as provide a general critique of the argumentative moves they make.

• Plain Error: In these critiques, Mr. Natelson accuses me of relying on non-existant sources. Mr. Natelson’s mistakes are not subjective: sources either exist or they don’t. Every instance of a source that Mr. Natelson and his assistant were unable to locate is readily available online, and confirms my original citation. Without any instruction from me, my Research Assistants were able to locate most of them in minutes—sometimes in seconds. Readers can do the same: I’ve provided screenshots and also linked to the sources.

• Claiming that Context Confirms His Conclusions in the Absence of Any Actual Evidence: Allegations of “misleading citations,” “deceptively edited quotations,” and “manipulation” reflect a more complicated disagreement, which I will discuss in more detail below. But Mr. Natelson’s basic move is consistent. When confronted with contrary evidence whose plain textual meaning seems contravene his preferred interpretation, he retrieves additional context from the original source—a useful exercise. But he then claims to discover in that context a limiting principle that he claims “proves” some alternate explanation—one that conveniently leaves his original hypothesis untroubled.
  
  Yet the actual sources contain nothing that directly substantiates or supports Mr. Natelson’s proposed limiting principle. His conclusion rests instead on his own often-tenuous inferences about what the author must have meant.
  
  This is best understood through concrete examples. Take President Washington’s statement that “the Executive of the United States possess[es] the only authority of regulating an intercourse with them [the Seneca Indians].” In the original article, I cited this provision only to show that Washington asserted federal supremacy over Indian affairs; I relied on other documents to discuss the source of federal authority. Nonetheless, Mr. Natelson insists that the President here “was alluding to his duties under a specific treaty between the United States and the Six Nations (one of which was the Senecas)—not to any general power over all Indians.”
  
  How does Mr. Natelson know? You might think, based on Natelson’s confident conclusion, that Washington’s letter explicitly said that he was relying on the treaty. If so, you’d be wrong: though he was writing about the Senecas, Washington’s letter said absolutely nothing about the treaty. Thanks, however, to Mr. Natelson’s apparent mind meld with Washington, the treaty’s mere existence “proves” that Natelson’s conclusion is definitively correct.
  
  I think Mr. Natelson’s interpretation here is unlikely; it cuts against significant other historical evidence, which I discuss below. But, though I think my interpretation more plausible, I cannot “prove” Mr. Natelson’s view wrong any more than Mr. Natelson can “prove” my view wrong: no responsible historian would assert such certainty in the face of a silent source. The only claim here that I think can be fairly deemed objectively wrong is Mr. Natelson’s claim to definitive authority and knowledge.
  
  This example is representative of other similar examples, which I will discuss below.

• Asserting Interpretive Disagreements are Factual Errors: Though similar to the prior move, in these instances Mr. Natelson just reiterates diverging interpretations and then accuses me of error for not agreeing with his conclusions. Did Mr. Natelson or I more faithfully interpret what an author said in her book or article? Is a treaty provision an “assertion” of federal authority or an acknowledgement that it would otherwise be absent? How best to read the appearances of the word “exclusive” in the Constitution? These are all classic interpretive questions. Mr. Natelson is free to dispute my views, which he clearly does. But the idea that I committed scholarly misconduct by offering my interpretations in my article is laughable. This standard of “cite-checking” decrees as sound scholarship only the interpretations that Mr. Natelson deems correct—a standard ultimately subversive of scholarship itself.

All of these issues frame a larger disagreement between Mr. Natelson and me. He finds great certainty in his interpretations of the past and of other scholars—so much so that, when I earlier pointed out much of his argument rested on an inaccurate version of a quotation that, when corrected, directly contradicted his original interpretation, he insisted that the corrected quotation still did not trouble his original conclusion. You will find a similar attitude throughout his “cite check”: deep confidence that not only is his interpretation right and mine wrong, but that my view is so egregiously incorrect as to not warrant publication.

I don’t feel such complete certainty about the unerring correctness of my conclusions, though I sometimes wish I did. But I also think such certainty is antithetical to the virtues of a good historian and scholar: openness to the ambiguity and complexity of the past; commitment to understanding historical sources on their own terms rather than in light of predetermined conclusions; acknowledgment when incomplete evidence makes definitive answers impossible.

[source]

The Slate article from Ablavsky:

'Clarence Thomas Went After My Work. His Criticisms Reveal a Disturbing Fact About Originalism.'

...on Thomas: I don’t need to add the latest critique on how originalism is often results-oriented, but I do think his dissent offers an interesting reflection on how it functions in practice. Originalism rests on the premise that, properly interpreted, history can sometimes offer objective and correct answers to legal questions. And, although I am at best agnostic on originalism as a constitutional theory, my article, and my work more generally, attempted to take that premise seriously. I have spent years immersed in the relevant sources, and written extensively on the historical question at issue; I have professional historical training; and I spoke directly to the kinds of legal questions that lawyers often complain that historians don’t care about.

None of this means that I’m necessarily right. What it does mean is that I have done the work. Even for originalist inquiries—like, say, the meaning of “commerce”—history is not the same as law; there is not some carefully cabined, narrow set of relevant sources. Mastering historical materials requires years of labor. And so it is not exactly comforting to see that, over the past few months, Justice Thomas seemingly dispatched his law clerks to do some full-text searches and then cut and pasted the results. (Perhaps most galling were Thomas’ multiple citations to sources that I am 99 percent certain were surfaced through my research.) The resulting dissent mostly just doubled down on the conclusions Thomas had reached 10 years ago, including citing Natelson, while almost willfully pretending that the very substantial contrary evidence referenced by Gorsuch simply did not exist. If we’re going to be originalists, you’d hope that decisions dramatically altering current law would rest on a sturdier footing.

[Svartalf]

Frumpy SCOTUS gets ready to destroy positive discrimination in universities... clarence thomas openly asks what it's good for... might be funny when you remember that without it, he'd be a lemon picker in california... As it is, I just want a slug loaded pump action shotgun and him in the same room.

[Tero]

No more woke college admissions.
https://www.cnn.com/2023/06/29/politics ... index.html
At his Supreme Court confirmation hearing in 1991, Clarence Thomas said that affirmative action can undermine the “self-esteem and self-respect” of the people it’s supposedly helping. On that day, Thomas sat before the U.S. Senate having accumulated decades of achievement—and having benefited from race-based preferences every step of his way.

[Svartalf]

Well, it sure makes for much bitterness for those who should have gotten in a top university and had their place 'stolent' by a less deserving student

[Sean Hayden]

That's a small price to pay to avoid further reinforcing the belief that education is a white thing.

[Svartalf]

Will racially separated colleges be legal? there will be a need for black colleges, as well as Spanish and Native ones...

[Sean Hayden]

I’m not following the logic. Why would those be necessary?

—//—

Part of me sees this as an example of how elites use pet causes —wittingly or not— to stay relevant—a kind of unhelpful super-relevance.

Their decisions and rhetoric may have very little to do with what’s actually happening to blacks in education.

[Svartalf]

If minority students can't go to white dominated universities, then we need minority colleges to provide them higher education.

[Sean Hayden]

Ah, I thought you were saying they would need to be all black, all Native etc —why else be concerned about legal issues?

[Tero]

If minority students can't go to white dominated universities, then we need minority colleges to provide them higher education.

There are several quite good black colleges. You can apply if you are white.